Will confirmation hearings be substantive, or show?

The U.S. Supreme Court confirmation process has been criticized as a kabuki theatre of sorts — nominees face a Senate panel for questioning, but rarely give substantive answers on issues that may be taken up by the Court.

Even nominee Elena Kagan has taken issue with the confirmation process in the past. In a 1995 law review article, Kagan lamented: “[t]he practice of substantive inquiry has suffered a precipitous fall since the Bork hearings, so much so that today it hardly deserves the title ‘practice’ at all.”

But will Kagan talk about her views on issues from gay rights to abortion, affirmative action and allowing military recruiters on campus? Should she?

“I think she should answer the questions” about her views on issues, said Walter Dellinger, former acting solicitor general and now a chairman of Appellate Practice at the Washington, D.C. office of O’Melveny & Meyers.

Dellinger was one of several experts discussing Kagan’s nomination at a recent panel hosted by the American Constitution Society in Washington.

Although nominees avoid giving their views on issues out of fear that they would have to recuse themselves should the issue come before the Court, Dellinger dismissed that justification.

“Rarely would [the answer] take a form that would require the nominee to disqualify herself from hearing the case,” Dellinger said, pointing out the views of other Supreme Court justices aren’t exactly hidden when it comes to issues they rule on.

“We know what Justice [Antonin] Scalia thinks of Planned Parenthood v. Casey,” Dellinger said, referring to a 1992 abortion case. “We know what Justice [John Paul] Stevens thinks about it. Why can’t we know what the nominee thinks?”

“[The] confirmation is the democratic moment for this independent life tenure,” Dellinger said.

Rachel Brand, counsel at Wilmer Hale’s Washington office and a former assistant attorney general who helped prepare Chief Justice John G. Roberts Jr. for his Senate confirmation hearings, said lawmakers may press Kagan harder for substantive answers because she has never been a judge, and therefore has no judicial record to analyze.

“Senators don’t have as much to go on, so they may expect her to have more answers about her views,” Brand said.

Thomas Wilner, of counsel at the Washington office of Shearman & Sterling, who served as counsel of record to detainees in Guantanamo Bay in several cases (including two that went before the Supreme Cour), said he thinks such issues-oriented debate is no longer possible during confirmation hearings.

“It’s not an open debate anymore. I think it’s a sham process because the Senate has become so partisan,” Wilner said.

The process has also become so legally hyper-technical, Wilner said, that it impedes the ability of lawmakers to ask thoughtful questions. Instead, he said, it is as if members of the Senate “crammed for a law school exam that they really don’t understand.”

“There is no capacity for anyone to ask follow up questions,” Wilner said.